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Green v. Customs and Excise [2003] ScotCS 206 (27 June 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Osborne

Lord Macfadyen

Lord Abernethy

XA61/02

OPINION OF THE COURT

delivered by LORD OSBORNE

APPEAL

From the Sheriffdom of North Strathclyde at Dumbarton

JOHN GREEN

Pursuer and Appellant;

against

THE LORD ADVOCATE, as representing HER MAJESTY'S COMMISSIONERS OF CUSTOMS AND EXCISE

Defender and Respondent:

_______

Act: Party (Pursuer and Appellant)

Alt: Young; Shepherd & Wedderburn, W.S. (Defender and Respondent)

27 June 2003

[1] In this appeal the pursuer and appellant appeals against the interlocutor of the sheriff at Dumbarton of 30 July 1998 in which he granted a decree of absolvitor in favour of the defender and respondent, the position being that the caution in the sum of £2,000 ordered to be found by the sheriff on 4 June 1998 had not been found. In this appeal both of these interlocutors are now under scrutiny.

[2] When this appeal was first taken unfortunately it appears that the sheriff who was involved in the matter was not informed about the existence of the appeal and, accordingly, he did not, at the outset, prepare a Note setting out his reasons for his decisions. However, on 24 January this year this court pronounced an interlocutor appointing the sheriff to write the Note in relation to both of the interlocutors which we have mentioned. That Note is now available and was examined in the course of the appeal. The sheriff explains in his Note that Miss Carty, a solicitor who acted on behalf of the defender, had explained to him the nature of the action which was before the Sheriff Court. In that action the pursuer was seeking a sum of £294,000, together with interest at the rate mentioned, as damages. Before the sheriff the pleadings in that action were considered. The essence of the claim was that the pursuer and appellant averred that the company known as Cmos Limited had gone into liquidation in January 1995, that the dissolution of the company had been deferred, but that the defender was negligent in not ascertaining the correct relationship between a firm or company entitled Electrical Services and Cmos Limited. Miss Carty before the sheriff drew attention to the averments in the action and, in particular, the averments to the effect that the negligence mentioned had caused prejudice and hardship to the pursuer.

[3] The background of the matter involved certain transactions affected by the Value Added Tax Regulations. At the time when the matter was considered by the sheriff, the period for adjustment to the written pleadings had expired and the case was due to call for an options hearing about a week after the hearing of the defender's motion for caution. The sheriff makes clear that he understood, correctly, that the issue of an order for caution was a matter for his discretion, taking into account all the relevant circumstances. Before the sheriff Miss Carty had advanced two reasons why, in her submission, caution ought to be ordered. In the first place, the pursuer was a party litigant craving damages based on negligence. She had contended that his written pleadings in the action were substantially lacking in specification, that he had failed to aver any duty of care incumbent upon the defender and had failed to specify in what manner the defender had been negligent. Furthermore, she had pointed out that he did not aver how the sum craved had been calculated and no details of the actual loss sustained had been provided. In essence, the submission made to the sheriff was that the pursuer had failed to state a relevant case and, the adjustment period having expired, his pleadings were then in their final form. The second reason advanced by Miss Carty in the hearing before the sheriff had related to the background affecting Value Added Tax. She pointed out that the pursuer was averring negligent conduct based, first, on the propriety of certain acts by H.M. Customs and Excise, which she described, relating to Value Added Tax in relation to the company Cmos Limited. There had been an appeal to the Value Added Tax Tribunal relating to these matters. It was said that all the issues relating to the Customs and Excise position had been fully addressed and decided by that Tribunal and no attempt had been made to appeal its decision to the Court of Session. There had been a liquidation petition before the sheriff, which was contested, and at the hearing which lasted two days, it had been the subject of detailed assessment and consideration. The third reason advanced by Miss Carty for seeking an order for caution was that of the pursuer's impecuniosity. At that stage, and indeed now, the pursuer lived on benefits of only around £68 per week. At the time of the hearing in the Sheriff Court, it appeared from the information available that the pursuer did not have any capital and lived in a local authority tenancy.

[4] The sheriff goes on in his Note to narrate the appellant's response to Miss Carty's submissions and we refer simply to what he says in that Note. The appellant invited the sheriff to exercise his discretion by not ordering caution. At page 6 of the Note the sheriff sets out the reasons which he gives for making the decisions which he did. He observes that the pursuer did not really answer satisfactorily any of the points made by the defender's solicitor. Indeed, he says that, to an extent, he agreed with the third of them, that is, the point regarding impecuniosity. In these circumstances the sheriff made the order to which we have referred.

[5] Before us, the appellant submitted that the sheriff's decision was flawed. In elaboration of that, he made reference to certain new grounds of appeal which had been lodged following on the sheriff's Note becoming available. Those grounds of appeal contained six different propositions which the appellant elaborated in argument.

[6] Having carefully considered the appellant's submissions we have come to the conclusion that we cannot interfere with the exercise of the sheriff's discretion. So far as we can see, the sheriff has not taken into consideration any irrelevant matters in reaching his decision, nor has he ignored relevant matters, which ought to have been considered. Furthermore, there is no suggestion or indication that he has misdirected himself in law. Finally, we are unable to say that the decision which he has reached is one which no reasonable sheriff could have reached. While this decision may appear to the appellant to be a harsh one, the fact of the matter is that the rules of law relating to the finding of caution are designed to provide security for a litigant who finds himself in dispute with an impecunious person. Thus those rules will inevitably involve that, from time to time, a person who is impecunious and does not have the benefit of legal aid will find that he faces a virtually insuperable barrier to the continuance of litigation. However, that is the unavoidable consequence of the application of the rules of law which I have mentioned. In these circumstances the appeal is refused.